CHINA’S “U-SHAPED LINE” CLAIM IN THE EAST SEA (BIEN DONG) - FORMATION HISTORY AND LEGAL ARGUMENTS

Thursday, 16 August 2012 02:09

1. Foreword

The East Sea dispute is one of the most complex territorial disputes in the world. The complexity of the East Sea dispute comes from complicated sovereignty claims of many countries for overlapping areas. Moreover, it is not only a dispute on the aspects of international law, on maritime border and sea territory but also involves strategic interests, especially the control of maritime transport routes and the exploitation of marine resources, including oil and gas.

The East Sea dispute is posing threat to the stability in the region; Vietnam and the Philippines have protested the Chinese act of threatening Philippine ships in the latter’s exclusive economic zone in March 2011 and its cutting of the cables of Vietnam’s Binh Minh 02 Ship on May 26, 2011, and its threat to cut the cables of Vietnam’s Viking 02 Ship on June 9, 2011, in spite of the fact that, these ships were operating in the waters of the economic exclusive zone and continental shelf of Vietnam under the 1982 United Nations Convention on the Law of the Sea (hereinafter referred to the Convention).

Under the Convention’s regulations, Vietnam and the Philippines have internal waters, territorial sea, contiguous zone, exclusive economic zone extending 200 nautical miles from the baseline and continental shelf extending 200 nautical miles from the baseline. Accordingly, Vietnam and the Philippines have sovereignty and jurisdiction rights over their respective exclusive economic zones and continental shelves of 200 nautical miles from their baselines, including the rights to exploit biological and non-biological resources in their respective exclusive economic zones and continental shelves.

However, recently the Chinese Foreign Ministry Spokesperson said that Vietnam was exploring oil and gas in the “disputed waters” between China and other regional countries. The waters seen by China as the “disputed area” with other countries are the waters lying inside the “cow’s tongue line” which has been rejected by all the international community.

In fact, the East Sea dispute has become one of the critical security issues in the region because China’s claim to nearly 80 per cent of the East Sea will have great impacts on the delimitation of the region’s sea border lines in the future, on trade and maritime activities in the world as well as on the sovereignty, territorial integrity and maritime interests of many countries, including Vietnam.

This article aims to study the history of the formation of the “cow’s tongue line” and legal arguments around it as well as the views of scholars and the international community towards this line.

2. The history of the formation of the “cow’s tongue line”

According to several scholars in China, in Taiwan and some other places (1), in January 1948, the Ministry of Home Affairs of Taiwan issued a map titled Nanhai zhudao weizhi tu (The Location Map of the South China Sea Islands). In February 1948, this map was officially published with a line that many Chinese scholars called the “U-shaped line” or the “nine-dashed line” and some others called the “cow’s tongue line” because it looks like a cow’s tongue licking the East Sea(2). This line, which was drawn on the map at that time, was an 11-dashed broken line.

Some Chinese scholars also wanted to push back the time of the first appearance of the “U-shaped line” as they said that the line had appeared in a map of an individual named Hu Jindi(3) in 1914 and then in a map of another named Bai Meichu in 1936. However, historical documents on this cow’s tongue line were very sketchy(4) and these scholars have admitted that “they do not know whether Bai had full knowledge of international maritime law at the time when he drew this map?”(5)

In 1949, the administration of Chiang Kai-shek was defeated and fled to Taiwan Islands, and the People’s Republic of China was born (hereinafter called China for short). This State then replaced the Republic of China (hereinafter called Taiwan) as a permanent member of the UN Security Council(6). In 1949, the People’s Republic of China also published a map in which the “cow’s tongue line” was drawn in the same way as it had been in the previous maps, including 11 dashes.

In that map, “the U-shaped line” or the “cow’s tongue line” covered all the four large archipelagos and reefs in the East Sea, including the Hoang Sa (Paracels), Truong Sa (Spratlys), Pratas (called Dongsha by China) and Maccelesfield bank (called Zhongsha by China).

The “cow’s tongue line” started from the land border between Vietnam and China in the Tonkin Gulf (the first two dashes go through the Tonkin Gulf) and extended southwards looking like the shapes of the eastern and south-eastern Vietnam coasts to the southern point of Scaborough Shoal coral reefs at the 4o north latitude and then turned upward to the north in parallel with the coastal lines of western Sabah of Malaysia, and Palawan of the Philippines and the Luzon archipelago, and ended in the middle of Bashi strait lying between Taiwan and the Philippines(7). This line was drawn arbitrarily and did not have accurate coordinates(8).

However, after a time, the “cow’s tongue line” on China’s map consisted of nine dashes. The Chinese Government did not give any reason why it left out two dashes. Chinese scholars held different views when the two dashes were removed(9). Especially, for a long time, despite allowing the publication of the maps showing the above-mentioned “U-shaped line”, both the Taiwanese administration and the Chinese Government never released any official statement or gave explanation on that line.

The statements and important legal documents of the Chinese Government, such as the Declaration on China.s Territorial Sea in August 1958, the 1992 Declaration of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, the 1996 Declaration of the People’s Republic of China on the Baselines of the Territorial Sea, and the 1998 Law of the People’s Republic of China on the Exclusive Economic Zone and the Continental Shelf, did not mention the “dotted line” claim or attached any map having the line.

The year 2009 was the year when under the regulations of the Convention, coastal states had to submit reports on their expanded continental shelves to the UN Commission on the Limit of the Continental Shelf (CLSC). On May 6, 2009, Vietnam and Malaysia submitted to the CLSC a common report on their expanded continental shelves(11), at the same time, Vietnam also sent its own report to the CLCS(12).

On May 7, 2009, the Government of the People’s Republic of China sent a note opposing the common report on expanded continental shelves of Vietnam(13) and Malaysia as well as Vietnam’s own report on its expanded continental shelf(14). The note included a map with the “U-shaped line.”

However, as before, the Chinese Government still declined to give any official explanation on the legal ground of its sea claim indicated in the map having the “dotted line” which was attached in the Notes of CML/17/2009 and of CML/18/2009.

So far, China’s official viewpoint on the legal status of this “cow’s tongue line” is still ambiguous although in Notes CML/17/2009 and CML/18/2009, China said that:

“The People’s Republic of China has its indisputable sovereignty over the islands in the South China Sea and surrounding waters, and enjoys sovereignty and jurisdiction rights over related waters as well as the seabed and subsoil of those waters. The above standpoint has been held consistently by the Chinese Government and widely known by the international community”(15).

With its May 7, 2009 notes enclosed with the map showing the “U-shaped line”, it seems China demands the international community to recognise “the historical nature of the cow’s tongue line and consider the East Sea a historical gulf”. This line is seen by Chinese scholars as China’s national maritime border line. They also seek to combine this line with the present international law of the sea on exclusive economic zone and continental shelf to assert that “China has its indisputable sovereignty over the Spratly Islands’ surrounding waters”.

3. Chinese scholars. views on the legal aspect of the “U-shaped” line

Up to now, all the explanations on the legal aspect of this “cow’s tongue line” have been given by Chinese and Taiwanese scholars. However, their explanations are very different. Gao Zhiguo(16) said that the line claimed for the ownership of the islands inside the line rather than represented a sea border line. He commented that “A careful study of Chinese documents showed that China never claimed for all water pillars in the East Sea but for islands and surrounding waters inside this line”(17) Zhao Lihai said that “the nine-dashed broken line clearly represented China’s territory and sovereignty over the four archipelagos in the East Sea and affirmed that China’s maritime boundary around the East Sea islands has belonged to China’s territory at least since the 15th century. All islands and nearby waters lying inside the line belong to China’s jurisdiction and control rights.

Jiao Yongke said that:

“The sea areas lying in the boundary of China.s Nanhai Sea constitute the areas that China has the title of historical ownership. These areas constitute China’s special exclusive economic zone or historical exclusive economic zone, therefore, they must enjoy similar status as those of an exclusive economic zone under the 1982 UN Convention on the Law of the Sea”(19)

Finally, Zou Keyyuan believed that China has a historical claim but this claim has similar legal status as those of an exclusive economic zone or that of a continental shelf.(20)

Zhao Guocai said that “China has its historical right to rocks islands, shallow reefs and sandy banks and waters lying in the nine-dashed line. The East Sea is considered a historical water of China widely recognised at that time. Since then, half of a century has elapsed”(21)

Pan Shiying(22) said that “the Government of the People’s Republic of China, through the publication of these maps, wants to send three messages to the international community:

Areas lying in this border line which are islands rocks and their surrounding waters belonged to China’s sovereignty and jurisdiction rights in the history.

Under international conventions, the position and direction of the 11-dashed broken line (then the nine-dashed line) has been drawn out in a manner that is equidistant from the outside edges of the four archipelagos in the South China Sea and the coastlines of surrounding countries. This has been legal at that time for occupation, possession and management.

The fact that the more often use of the broken line rather than the continuous one to mark several key areas pointed out the nature of the “unfinished” thing, which leaves the possibilities of future necessary adjustments.

In other words, according to Pan Shiying’s viewpoint, the waters surrounded by this line are the historical waters under China.s internal water regime. This line is only symbolic and the historical title of China on these waters is substantial.

The viewpoints of the Taiwanese administration

If the Chinese side still fails to explain of the legal nature of the .cow.s tongue line., the administration of Taiwan has said that the waters inside the “U-shaped line” are the “historical waters”.

Two Taiwanese scholars, Yann Hueisong and Peter Kien Hongyu, said that in 1988, after the clash between the naval units of China and Vietnam in the Truong Sa archipelago, some Taiwanese scholars were assembled to study the “historical waters” and the legal nature of the “cow’s tongue line”. According to Yann Hueisong and Kien Hongyu, the abovesaid scholars formed two groups with conflicting viewpoints on this issue(23): The first group said that the waters surrounded by the “U-shaped line” should be considered the “historical waters” of Taiwan. This argument was based on two reasons. Firstly, when the map was published in 1948, no opposition or response from other countries was made. Secondly, the claim for the enclosed waters as the historical waters did not violate Section 4 of the Convention. The second group opposed this opinion. They said that Taiwan’s claim for the historical waters can not be justified as the “cow’s tongue line” was drawn out arbitrarily, it could not be located at sea because of the lack of a system of coordinates and the concept of the “historical waters” became out-dated, it was difficult to be used to support this claim by the Taiwanese administration.

However, the Taiwan’s committee on this issue accepted the viewpoint of the first group.

To formalize that viewpoint, in its official statement, the Taiwanese administration said that from the perspectives of history, geography, international law and reality, the Nansha (Truong Sa), Shisha (Hoang Sa), Chungsha (Macclesfield) and Tungsha (Pratas) Islands are inseparable territorial parts of Taiwan; the sovereignty over those islands belongs to Taiwan. The East Sea area lying inside of the historical waters is under Taiwan’s jurisdiction and Taiwan is entitled to all rights and interests in this area”(24).

However, recently it seems that the Taiwanese administration has adjusted their views. For example, the May 2009 statement which opposed Vietnam’s report and a joint report by Vietnam and Malaysia to the CLCS stated that:

“The Taiwanese administration reaffirms that Diaoyutai (Senkaku), Nansha (Truong Sa), Shisha (Hoang Sa), Chungsha (Macclesfield) and Tungsha (Pratas) as well as surrounding waters are Taiwan’s inseparable territory and waters based on the indisputable sovereignty entitlement, from the perspectives of history, geography and international law. Under the international law, Taiwan is entitled to all rights and interests over the above-mentioned islands as well as the surrounding waters, related seabed and sub soils”(26).

In this statement, proofs on the historical rights/ historical waters are not mentioned; the statement seemed to focus on Taiwan’s territorial sovereignty over the islands and their surrounding waters(27).

Legal arguments on the “U-shaped line”

The main legal arguments on the “cow’s tongue line” focus on two points:

Firstly, does the “cow’s tongue line” constitute an official claim?

Secondly, most of Taiwanese and Chinese scholars and the Taiwanese Government itself said that the waters inside “the nine-dashed line” are considered their “historical waters” due to the existence of “China’s long-lasting historical title”, so how is this issue explained under the international law?

Regarding the first question, international scholars (including Taiwanese scholars) hold the view that the time when the Chinese Government sent the May 7, 2009 note to the United Nations, including a map with the “U-shaped line” was the first time this map was made public before the international community(28).

In this connection, we can consult Judge Oda about the Kasikili/Sedudu case: “A territorial claim can only be made with a government’s clear intention. This can be reflected through maps. The maps themselves, if having no other supportive proofs, cannot justify a political claim”(29). Scholar Erik Franckx and Marco Benatar, in their study, said that “in this case, the criteria to determine the Chinese Government’s clear intention are not fully met. Different interpretations on the “U-shaped line” given by scholars as well as the unclear May 7, 2009 notes of the People’s Republic of China are evidences for this conclusion”(30). We also find that besides complicated sentence structures, terms used in the note, e.g. “related waters” and “surrounding waters”, made readers difficult to understand because they are not seen in the 1982 UN Convention on the Law of the Sea. The intentional ambiguity became more ambiguous since China had not yet (by 2011) enacted any law that makes the “cow’s tongue line” come into force in its national legal system(31).

Thus, even the sending of the map with the “cow’s tongue line” attached to the UN on May 7, 2009 without any other explanations cannot be seen as a claim. The publication of maps by an individual without any clear announcement cannot be regarded as a territorial claim by a country. Under the international law, actions taken by a country must publically show the will to exercise the sovereignty over that territory. These actions must be publically taken like normal activities of a country. Secret acts cannot lay foundations for historical rights; at least other countries must have opportunities to know what is happening(32).

Secondly, regarding the question on “historical waters”:

The concept, regarding “historical gulf” or “historical water” is the area in which a country exercises its sovereignty accepted by international law in some limited circumstances. Section 10 (6) of the 1982 Convention on the Law of the Sea recognises the existence of such a water area, and some gulfs that fail to meet the official standards of a “gulf” under Section 10 have been granted with this regulation. However, to date, there is not any definition on the “historical water” that is widely accepted, but in the broad sense, the “historical water” implies rights of a coastal state to the waters which normally that country is not entitled to. The scope of rights to the historical waters differs on each case.

The concept of the historical claim was accepted in 1951 by the International Court of Justice (ICJ) when judging Norway’s claim for the waters adjacent to its coast. Historical sovereignty claims were also accepted in appropriate circumstances in the 1958 Convention on Territorial Sea and Contiguous Zone. Recently, in the case of the Fonseca Gulf, the International Court recognised the Fonseca Gulf as a historical gulf and its historical waters.

In 1962, the International Law Commission carried out a study themed “Legal status of historical waters, including historical gulfs.” This study included answers to questions which criteria should be applied to determine the legality of a historical sovereignty claim. The study said that:

“It seems there is a relative unanimity that at least three factors must be considered when deciding whether a state is entitled to a sea water or not. These factors include: (1) the execution of sovereignty over the water to which the state makes a historical claim; (2) the continuity of the execution of that sovereignty; (3) the positions of other states”(33).

“On the other hand, it should be repeated that rights to “historical gulfs” are based on the effective execution of sovereignty over the claimed areas, together with the unopposed attitudes of other states. Exercised sovereignty may be the sovereignty over internal waters or the sovereignty over territorial sea. According to principles, the scope of the newly appeared historical title cannot be broader than the scope of sovereignty that is being exercised currently. If the claimant has exercised sovereignty as it does over its internal waters, the claimed area may be internal waters, and if the exercised sovereignty is sovereignty over territorial sea, that area may be territorial sea”(34).

Thus, if a administration who makes claims to the waters lying inside the “Ushaped line” regard the area as historical waters, then which legal regulations can be applied to these waters? If these waters are claimed as internal waters, the claimant must prove that it has exercised sovereignty uninterruptedly over the waters surrounded by the “dotted line” as long as the period it has exercised sovereignty over its other internal waters. If these waters are claimed as territorial seas, the claimant must show that it has exercised sovereignty continuously overthe enclosed waters as long as they have exercised sovereignty over other territorial seas. This is applied in the same way they make claims to the enclosed waters as archipelagic waters. However, in reality it has happened like the followings:

Regarding claims to internal waters

Under the legal regime of internal waters, a coastal State fully exercises its sovereignty over the waters lying inside the baseline used to measure the breadth of the territorial sea; foreign ships do not have the right of innocent passage in the internal waters of the coastal State, without that State’s approval.

So can the waters enclosed by the “cow’s tongue line” be considered internal waters? The answer coming right from Taiwanese scholars is “No”(35), because of the following reasons: firstly, the Taiwanese administration has never claimed the waters inside the “U-shaped line” as internal waters. Secondly, foreign ships, including warships, have still performed the right to travel in the waters inside the “nine-dashed line” since this line appeared on the map published by the Republic of China in 1948, and the Taiwanese administration hasn’t taken any action to prevent foreign ships from travelling in this region.

Regarding claims as “territorial sea”

Under Section 3 of the 1982 UN Convention on the Law of the Sea (UNCLOS), “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from the baseline under this Convention.” Every State has the right to exercise sovereignty over its territorial sea. Foreign ships only enjoy the right of innocent passage through the territorial sea of coastal States, unless otherwise stated. For the air space over the territorial sea, foreign aircraft do not have the right of innocent passage.

So the next question is whether the waters inside the “cow’s tongue line” can be considered the territorial sea of China? The answer is also “No”. Foreign aircraft have flied over the air space over these waters since 1948 when the map was published. As presented above, foreign aircraft do not have the right of innocent passage over the air space over the territorial sea of a coastal State.

Regarding claims as archipelagic waters

The concept of archipelagic waters is a new concept in the international law of the sea, which was introduced at the third UN Conference on the Law of the Sea (UNCLOS III), under which, the waters lying inside the straight baseline of an archipelago are archipelagic waters, and they are neither internal waters nor territorial sea. An archipelagic State has the right to exercise sovereignty over its archipelagic waters. The national sovereignty “extends to the air space over the archipelagic waters as well as to their bed and subsoil, and the resources contained therein”(36). Ships of all States enjoy the right of innocent passage through archipelagic waters. All foreign ships and aircraft enjoy the right of innocent passage over the sea lanes and air routes in the archipelagic waters.

Because the legal regime of “archipelagic waters” was developed in the period of the third UN Conference on the Law of the Sea (UNCLOS) (1973-1982) and the map showing the “U-shaped line” was firstly published in 1948, it was hard to prove that the waters inside the “cow’s tongue line” can get the legal regime of archipelagic waters. The Taiwanese administration and the People’s Republic of China have not exercised their sovereignty and jurisdiction rights over all the waters inside the “nine-dotted line”. Foreign ships and aircraft have continued to enjoy the right to free maritime navigation and aviation in the waters inside this line, instead of the right of innocent passage and the right of passage in sea lanes and air routes stipulated to the archipelagic waters. Therefore, we can conclude that all the waters inside the “ninedashed line” cannot be considered the archipelagic waters of Taiwan as well as those of the People’s Republic of China.

Not to mention that all historical books of the Chinese feudal state, from Shiji to the Unified Da Ruan (1294), the Unified Da Ming (1461) and the Unified Da Ying before 1909 affirmed that “the southernmost point of the Chinese territory is Yaxian, Hainan island”(37). Chinese territory maps drawn by foreigners at the same time gave the same explanations. The Chinese map in the 17th century by Peter de Goyer and Jacob de Keyzer of the Netherlands’ east-India Company also had a clear explanation that “the furthermost point of China begins from the south of Nanhai island at north latitude 18o and then goes back to the north latitude 42o...”(38).

Some Chinese scholars like Zhao Lihai, Pan Shiyng said that the “cow’s tongue line” displays China’s “traditional border line”. However, “the nine-dashed line” cannot be an international border line because it is not a stable path. From 11 dashes, China then left out two dashes in the Tonkin Gulf because they are too groundless. Chinese authors explained that the discontinuity of this path is “for future necessary adjustments.” Meanwhile, the most important property of an international border line is stability and definitiveness(39). The “cow’s tongue line” does not represent that property. Furthermore, its position does not have clear coordinates. Therefore, it is hard to be displayed as a border line(40).

Especially, Article 1 of the 1958 Declaration on Territorial Sea of the People’s Republic of China stressed that:

“The breadth of territorial sea of the People’s Republic of China is 12 nautical miles. This article is applied for all territories of the People’s Republic of China, including mainland China and its coastal islands as well as the islands of Taiwan and their surroundings, the Penghu archipelago and all other islands of China separated from the mainland and its coastal islands by sea”(41).

Thus, the 1958 Declaration of China clearly defined islands separated from the mainland by sea but not historical waters. Is it possible that the sea lies inside China’s internal waters? That unreasonable thing could not exist. Hence, Chinese authorities. declarations and laws, especially the 1958 Declaration of the People’s Republic of China, are viewed by scholarsas contradictory to the “cow’s tongue line” itself (42).

The China’s Declaration on the Baselines on May 15, 1996 increased this ambiguity as it required a baseline with the inclusion of the Hoang Sa but did not mention Truong Sa.

Chinese scholars said that the international community did not raise opposition to prevent the consolidation of China’s claims in the East Sea, creating a tacit acceptance for this claim:

“At the time when the nine-dashed line was announced, the international community did not voice any opposition. No neighbouring country expressed diplomatic protests. This could be considered as recognition and we can stress that the dotted line has been recognised over half a century. However, in recent years, some Southeast Asian nations related to sovereign disputes in the East Sea have put questions against the legal status of the nine-dashed line”(43).

Zhao Guocai said that “When the ninedashed line was announced, the international community have not given any opposition. Neighbouring countries also no diplomatic protests to the line. These factors constitute a recognition” (44).

As shown above, with China’s ambiguity over the interpretation of a map with the “cow’s tongue line”, which could not be considered a territorial claim, so other countries did not raise their voices. In addition, Chinese scholars’ arguments were in contradiction with the official statements of the Chinese government.

At the San Francisco Conference in September 1951, participating states refused to accept the proposal to return the Hoang Sa and Truong Sa archipelagos to China(45), and the disputes on sovereignty over the Hoang Sa between Vietnam and China or sovereign disputes on the entire or a part of the Truong Sa archipelago between Vietnam, Malaysia, the Philippines and China showed that it cannot be said that the “cow’s tongue line” has been recognised by other countries.

After China sent two notes to the UN on May 7, 2009, Vietnam sent its note to the U.N on May 8, 2009 to protest this Chinese move.

“The Hoang Sa and Truong Sa archipelagos are part of the Vietnamese territory. Vietnam has its indisputable sovereignty over these archipelagos. China’s claim to the islands and their surrounding waters in the East Sea demonstrated on the attached map in Notes CLM/17/2009 and CLM/18/2009 do not have any legal, historical and factual bases, therefore they are invalid”(46).

On July 8, 2010, Indonesia - a big country in ASEAN which does not have disputes on sovereignty over the Truong Sa and Hoang Sa archipelagos also sent Note No. 480/POL-703/VII/10 to the UN protesting China’s claims to these waters (47). Indonesia’s Note stated that:

“Based on the above declarations, the so-called “broken line map” attached in Note No. CLM/17/2009 on May 7, 2009 lacks international legal foundations and runs counter to the regulations of the 1982 UN Convention on the Law of the Sea”.

In his declaration in Hanoi on July 23, 2010, the US Secretary of State raised hervoice against the claims that do not abide by the 1982 Convention, implying the “cow’s tongue line”(48).

On April 5, 2011, the Philippines also sent a note to the UN opposing China’s “U-shaped line”:

“The claim of the People’s Republic of China for “related waters as well as their seabed and subsoil” (attached in Notes CLM/17/2009 and CLM/18/2009) said above, outside KIG’s geological structures, “related waters” does not have any foundation in international laws, especially in the 1982 UN Convention on the Law of the Sea”(49).

Thus, we can say that there is no the so-called “tacit acceptance” by the international community for China’s “Ushaped line”.

6. Conclusion

The “cow’s tongue line” claim started from a map of an individual and then was first published by Taiwan in 1948. After that, both the Taiwanese administration and the Government of the People’s Republic of China based on that map to make their claims to these waters in the East Sea.

The real purpose of this claim is still a mystery. China has always shown its ambiguity with unclear declarations. However, China’s recent activities show that in fact, China is claiming for all maritime waters and their resources.

The analyses based on international laws show that due to the lack of legal foundations, the “People’s Republic of China fails to argue for its historical claims with clear coordinates and keeps silent on the nature of the U-shaped line and the legal regime of the waters enclosed by that line”(50). Even Chinese scholars did not agree with each other on the legal regime of the waters surrounded by this dotted line(51).

Chinese scholars have tried their best to find out every argument proving the valid of their claims while foreign scholars put forth more objective opinions. The group of Mark J Valencia said that “a Chinese claim to consider the South China Sea as its historical waters cannot stand from the perspective of contemporary international law”(52).

Under the present international law, we can come to a conclusion on China.s “U-shaped line” claim that “historical claim has no foundation in the international law(53)”, “China’s claim for historical sovereignty and rights over the whole East Sea and/or over its bed and subsoil runs counter to the comprehensive development of the present international law of the sea and cannot be considered a serious legal issue”(54)./.

Hoang Viet*

Notes

* Hoang Viet, the HCM City Law University

See Li Jinming and Li Dexia, The Dotted Line on the Chinese Map of the South China Sea: A note, Ocean Development & International Law, 34:287-295, 2003, page 289; Yann Hueisong and Peter Kien Hongyu, China’s “historical waters” in the South China Sea: an analysis from Taiwan, American Asian Review Vol. 12, No. 4, Winter, 1994, (pp. 83-101); Zou Keyyuan, Law of the sea in East Asia, Routledge, 2005, page 49.

Kien Hongyu in his cited document quoted some Chinese scholars as saying that in 1990, China invited Bai Meichu to ask why he drew this “cow’s tongue line”, but Bai was too old to answer. But according to our finding based on information on Bai on website http://baike.baidu.com/view/1161198.htm, Bai died in 1940.

Peter Kien Hongyu, op cit, page 407.

The People’s Republic of China replaced Taiwan to become a permanent member of the UN Security Council in 1971.

Li Jinming and Li Dexia, in their cited document, page 290, said that in 1953, Chinese Premier Zhou Enlai left out these two dashes. But this opinion was different from that of Zou Keyyuan, who said that these two dashes were crossed out in the 1960s. See Zou Keyyuan, Law of the sea in East Asia, Routledge, 2005, page 50.

September 13, 2009 was the deadline for States to submit reports on their expanded continental shelves to the CLCS.

Malaysia-the Socialist Republic of Vietnam, Common Report to the UN Commission on the Limit of the Continental Shelf under Article 76.8 of UNCLOS relating to southern sea waters, Summary, May 2009, see at www.un.org/Depts/los/clcs_new/summissions_ files/mysvnm33_09/mys_vnm200 9executivesummary.pdf

The Socialist Republic of Vietnam, Report to the UN Commission on the Limit of the Continental Shelf under Article 76.8 relating to Vietnam’s expanded continental shelf: northern sea waters (VNM-N), Summary, April 2009, see at www.un.org/Depts/los/clcs_new/summissions_ files/vnm37_09/vnm2009n_excutivesummary. pdf

The People’s Republic of China, Note sent to the UN Secretary-General, New York, May 7, 2009, CLM/17/2009, see at www.un.org/Depts/los/clcs_new/summissions_ files/mysvnm33_09/chn_2009re_my s_vnm_e.pdf

The People’s Republic of China, Note sent to the UN Secretary-General, New York, May 7, 2009, CLM/18/2009, see at www.un.org/Depts/los/clcs_new/summissions_ files/vnm37_09/chn_2009re_vnm.pdf

The People’s Republic of China, Note sent to the UN Secretary-General, New York, May 7, 2009, CLM/17/2009, see at www.un.org/Depts/los/clcs_new/summissions_ files/mysvnm33_09/chn_2009re_mys _vnm_e.pdf;

The People’s Republic of China, Note sent to the UN Secretary- General, New York, May 7, 2009, CLM/18/2009, see at www.un.org/Depts/los/clcs_new/summissions_ files/vnm37_09/chn_2009re_vnm.pdf

Gao Zhiguo is now one of the 21 judges of the International Tribunal for the Law of the Sea (ITLOS).

Jiao Yongke, Re-quote Erik Franckx & Marco Benatar, “Dotted Lines in the South China Sea: Fishing for (legal) Clarity”, document at an international seminar on the East Sea in Ho Chi Minh City in November 2010, page 11.

Guidance on Policy towards the East Sea, Point 1.10, March 10, 1993, in the article of Kuan-Mingsun, “Policy of the Republic of China Towards the South China Sea: Recent Developments”, Marine Policy, vol. 19, 1995, page 408 (Appendix I).

The Ministry of Foreign Affairs of the Republic of China (Taiwan), Declaration of the Republic of China on Limits of Continental Shelf, No. 003, May 12, 2009, see at www.mofa.gov.tw/webapp/content.asp?cuIt em=38077&ctNode=1036&mp=6

Further see Declaration of the Ministry of Foreign Affairs of the Republic of China (Taiwan) relating to the DOC signed by ASEAN and the People’s Republic of China in Cambodia on November 4, 2002, see at www.mofa.gov.tw/webapp/ct.asp?xIte=357 &ctNode=1902&mp=6. “The Government of the Republic of China reiterates its sovereignty over the Tungsha (Pratas), Shisha (Parcel), Chungsha (Macclesfield) and Nansha (Spratly) in the East Sea, the areas that it has legal rights under international law”; The Ministry of Foreign Affairs of Taiwan, position of the Ministry of Foreign Affairs on Taiwan’s sovereignty over islands on the East Sea, November 20, 2007, see at www.mofa.gov.tw/webapp/ct.asp?xItem=27 782&ctNode=1903&mp=6: “The Spratly, Parcel, Macclesfield Bank and Pratas Islands have been always an intrinsic part of Taiwan’s territories, whether looked at from the perspective of history, geography, international law or plain fact. According to the principles of international law, the sovereignty of the Taiwanese government over these islands is unquestionable and it enjoys all right accordingly”; the Ministry of Foreign Affairs of Taiwan, the Taiwanese administration reiterates its sovereignty over the Spratly Islands and has proposed a Spratly Initiative that focuses on environmental protection instead of sovereign disputes, August 15, 2008, see at www.mofa.gov.tw/webapp/ct.asp?xItem=3 2920&ctNode=1903&mp=6: The Spratly Inslands, including Swallow Reef (Layang-Layangatoll) are located in Taiwan’s territorial waters. From either a historical, geographical or international legal perspective, the Spratly Islands, Paracel Islands, Macclesfield Islands, Pratas Islands and nearby waters are part of Taiwan’s territory and territorial waters.”; The Ministry of Foreign Affairs of Taiwan, Declaration of the Ministry of Foreign Affairs of Taiwan concerning the Philippine Senate Bill 2699 and House Bill 3216, February 6, 2009, see at www.mofa.gov.tw/webapp/ct.asp?xItem=3 6914&ctNode=1902&mp=6: “In terms of either history, geography, reality or international law, the Spratly Islands, Paracel Islands, Macclesfield Islands, Pratas Islands, as well as the surrounding waters, are the existent territories of the Republic of China. The fact that sovereignty of these areas belonging to our government is undeniable, Taiwan enjoys and deserves all rights accordingly. Any sovereignty claims over, or occupation of, these islands and their surrounding waters will not be recognised by the Government of the Republic of China.”

See Erik Franckx & Marco Benatar “Dotted Hoang Viet – China’s Lines in the South China Sea: Fishing for (legal) Clarity”, Document delivered at an international seminar on the East Sea in Ho Chi Minh City in November 2010, page 4; Kuan-Hsiung Wang, “The ROC’s Maritime Claims and Practices with Special Reference to the South China Sea”, Ocean Development and International Law, vol. 41, 2010, page 247.

Collection of verdicts and decrees of the International Court of Justice (ICJ), 1951, the case of UK-Norway fishery, pages 116, 139; G. Fitzmaurice: “The laws and statutes of the International Court of Justice, 1951-1954”, BYIL 1954, vol. 30, pages 1-30.

UN Doc. A/CN.4/143. In ILC Yearbook 1962, vol. 2, page 13.

UN Doc. A/CN.4/143. In ILC Yearbook 1962, vol. II, 1962, page 23.

Yann Hueisong, op cit; Kuan-Hsiung Wang, “The ROC’s Maritime Claims and Practices with Special Reference to the South China Sea”, Ocean Development and International Law, vol. 41, 2010, page 248.